Legal Community Condemns Destruction of CIA Tapes

by William Fisher

A former US Department of Justice (DOJ) ethics
adviser has joined leading members of the US legal community in calling on
Congress to investigate the destruction of tape recordings of interrogations
carried out by the Central Intelligence Agency (CIA).

Jesselyn Radack – who came to prominence as a whistleblower after she objected
to the government's treatment of John Walker Lindh, the "American Taliban"
captured during the 2001 invasion of Afghanistan – told a news teleconference
last week that the destroyed tapes are "part of a pattern." She said,
"There are some five million missing White House e-mails. No one knows
where the hit lists are from the US Attorney massacre. And now the CIA interrogation
videotapes have been erased. This is criminal."

"Remember when the Justice Department prosecuted Enron and Arthur Anderson
for destruction of evidence and obstruction of justice? Now the Justice Department
is trying to block congressional oversight and legal proceedings involving this
latest scandal," Radack added.

Radack's comments came during the launch of a new campaign, "American
Lawyers Defending the Constitution." The effort is backed by a statement
signed by more than 1,300 lawyers and law students around the country, including
former New York governor Mario Cuomo, former Reagan administration official
Bruce Fein, leaders of legal organizations and more than 100 law professors
in the US.

Their statement calls on House Judiciary Chairman John Conyers and Senate Judiciary
Chairman Patrick Leahy to hold wide-ranging hearings to investigate "unconstitutional
and potentially criminal activity by the Bush Administration."

The "TapeGate" furor erupted after the New York Times revealed
in early December that the CIA in 2005 had destroyed at least two videotapes
documenting the interrogation of two al-Qaeda operatives in the agency's custody,
"a step it took in the midst of Congressional and legal scrutiny about
its secret detention program, according to current and former government officials."
The CIA subsequently announced the program.

The videotapes showed agency operatives subjecting terrorism suspects – including
Abu Zubaydah, the first detainee in CIA custody – to severe interrogation techniques
in 2002. In a message to his staff, CIA Director General Michael V. Hayden reportedly
said the tapes were destroyed in part because officers were concerned that the
video showing harsh interrogation methods could expose agency officials to legal
risks. He also said the tapes no longer had intelligence value.

The destruction of the tapes has raised questions about whether CIA officials
withheld information from Congress, the courts and the Sep. 11 commission about
aspects of the program.

The CIA program that included the detention and interrogation of terrorism
suspects began after the capture of Zubaydah in March 2002. The CIA has said
that the DOJ and the executive branch reviewed and approved of the use of a
set of harsh techniques before they were used on any prisoners, and that the
DOJ issued a classified legal opinion in August 2002 that provided explicit
authorization for their use.

Other participants on the telephone press conference included Michael Ratner,
president of the Center for Constitutional Rights, a legal advocacy group, and
Marjorie Cohn, president of the 6,000-member National Lawyers Guild.

Ratner, whose organization has played a major role in providing defense lawyers
for detainees in Guantánamo Bay and elsewhere, underscored the importance
of congressional action. "For far too long Congress has been the handmaiden
of the Bush administration's undermining and subversion of basic constitutional
rights. The right to be free from torture; warrantless wiretapping; jailing
without habeas corpus; and disappearances into secret sites. Principles going
back to the Magna Carta are at stake," he said.

Ratner called on Congress to "do its job: defend the Constitution from
its enemies." "Its enemies are the Bush administration," he stressed.

"Just announcing that investigations will be held and subpoenas will be
issued is terribly insufficient unless Congress is willing to enforce the subpoenas
by issuing contempt citations," Ratner said, emphasizing that, "Congress
has a constitutional duty to oversee the activities of the executive branch,
and our entire system of government is threatened when Congress simply folds
before an obstinate executive."

Cohn, author of the recently published book, Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law, told IPS, "From
the illegal war in Iraq, to the illegal torture of prisoners in US custody,
to the illegal destruction of evidence by the CIA, the Bush administration has
become an institution of lawbreakers. Congress must hold hearings to investigate
this lawbreaking, and should authorize the appointment of an independent prosecutor
since Michael Mukasey cannot be counted on to conduct an impartial investigation."

Radack rose to prominence as a major whistleblower in the Lindh case. In the
course of Lindh's criminal prosecution, the court ordered all documents associated
with his interrogation to be turned over. After some documents were turned over,
Radack was asked about the existence of more documents. At that time, she looked
through the files and discovered that the bulk of her work was missing and had
not been turned over. Radack was able to reconstruct much of her work, and informed
her supervisor that her department had not complied with the court order.

She was forced to resign before the documents were turned over. A criminal
investigation into Radack's actions was eventually closed with no charges,
but her case was referred to the state bar of Maryland, which eventually cleared
her of all wrongdoing. She has never been called to testify before Congress.

The Department of Justice (DOJ) said it had no knowledge that Lindh was represented
by a lawyer prior to his interrogation, but this position appears to be contradicted
by material in Radack's files.

Radack told the news conference, "My e-mails documented my advice against
interrogating Lindh without a lawyer, and concluded that the FBI committed an
ethics violation when it did so anyway. Both the CIA videotapes and my e-mails
were destroyed, in part, because officials were concerned that they documented
controversial interrogation methods that could put agency officials in legal
jeopardy."

In a related development, one of America's leading constitutional scholars
said White House involvement in the CIA's decision to destroy videotapes documenting
severe interrogation techniques of suspected terrorists could constitute as
many as six crimes.

Jonathan Turley, a professor at George Washington University law school in
Washington, appeared on CNN to discuss a report by the New York Times
that four White House attorneys – including then-White House counsels Alberto
Gonzales and Harriet Miers – participated in discussions with the CIA about
whether or not the tapes should be destroyed.

Turley said, "There are at least six identifiable crimes here, from obstruction
of justice to obstruction of Congress, perjury, conspiracy, false statements,
and what is often forgotten: the crime of torturing suspects." "If
that crime was committed it was a crime that would conceivably be ordered by
the president himself, only the president can order those types of special treatments
or interrogation techniques," he added.